Common use of Terms Relating to Liability Clause in Contracts

Terms Relating to Liability. (a) DTI shall be liable to each Fund (or any person or entity claiming through a Fund) for Loss the recovery of which is not otherwise excluded by another provision of this Agreement only to the extent the Loss is caused by, (i) with respect to DTI's performance of the Services, conduct constituting intentional misconduct, reckless disregard or negligence ("Breach Conduct"), and (ii) with respect to obligations under this Agreement other than those described in clause (i), for breaches of this Agreement. As used in this Agreement, negligence shall mean conduct not commercially reasonable under the applicable circumstances. (b) Notwithstanding any other provision, and for all purposes, of this Agreement: Neither party nor its Affiliates shall be liable for any Loss (including Loss caused by delays, failure, errors, interruption or loss of data) or breach hereunder occurring directly or indirectly by reason of any event or circumstance, whether foreseeable or unforeseeable, which despite the taking of commercially reasonable measures is beyond its reasonable control, including without limitation: natural disasters, such as floods, hurricanes, tornados, earthquakes and wildfires; epidemics; action or inaction of civil or military authority; war, terrorism, riots or insurrection; job action by organized labor; interruption, loss or malfunction of utilities, transportation, internet or communications capabilities; or non-performance by third parties (other than contractors or subcontractors of DTI for causes other than those described herein) (all and any of the foregoing being an "Event Beyond Reasonable Control") . Upon the occurrence of an Event Beyond Reasonable Control, the affected party shall be excused from any non-performance caused by the Event Beyond Reasonable Control for so long as the Event Beyond Reasonable Control or damages caused by it prevail and such party continues to use commercially reasonable efforts to attempt to perform the obligation so impacted. (c) NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, BUT SUBJECT TO THE EXPRESS EXCLUSION OF THIS SECTION 11(c) PROVIDED FOR IN THE LAST SENTENCE OF SECTION 5(d), IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS, TRUSTEES, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS OR SUBCONTRACTORS BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR LOST PROFITS, FOR EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER DAMAGES WHICH ARE NOT DIRECT DAMAGES REGARDLESS OF WHETHER SUCH DAMAGES WERE OR SHOULD HAVE BEEN FORESEEABLE AND REGARDLESS OF WHETHER ANY ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ALL AND EACH OF WHICH DAMAGES IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES. FOR PURPOSES OF CLARIFICATION: NO OTHER PROVISION OF THIS AGREEMENT SHALL BE INTERPRETED TO CONDITION, LIMIT, MODIFY, NULLIFY OR OTHERWISE PREVAIL IN WHOLE OR IN PART OVER THIS SECTION 11(c). (d) Each party shall have a duty to mitigate damages for which the other party may become responsible, including giving notice of Loss or Breach Conduct which in timing and content is commercially reasonable under the circumstances when such notice would provide the other party with an opportunity to remediate the Loss or Breach Conduct. (e) With respect to securities data, information and research furnished to DTI by third parties and included in the BNYM System ("Securities Data"), the Funds acknowledge that DTI and such third parties make no warranty concerning the Securities Data and DTI disclaims all responsibility for the Securities Data, including its content, accuracy, completeness, availability or timeliness of delivery, and DTI shall not in the absence of Breach Conduct be liable for Loss caused by Securities Data not being provided to it with the content and at the time which is standard for the industry or which is required for performance of any service provided for herein, including without limitation performance of the Licensed Services.

Terms Relating to Liability. (a) DTI shall be liable Subject to each Fund (or any person or entity claiming through a Fundthe terms of this Agreement including, without limitation, Section 11(b) for Loss below, BNYMTI’s sole and exclusive monetary liability to the Funds under this Agreement, the recovery of which is not otherwise excluded by another provision of this Agreement only Agreement, shall be for the direct money damages relating to the extent the a Loss that is caused by, (i) with respect to DTI's BNYMTI’s performance of the Services, conduct constituting intentional misconduct, reckless disregard or negligence ("“Breach Conduct"”), and (ii) with respect to obligations under this Agreement other than those described in clause (i), for material breaches of this Agreement. As used in this Agreement, negligence shall mean conduct not commercially reasonable under the applicable circumstances. (b) BNYMTI’s maximum aggregate cumulative monetary liability to the Funds and all persons or entities claiming through the Funds, considered as a whole, for all loss, cost, expense, damages, liabilities and obligations under or related to this Agreement or the Services hereunder, the recovery of which is not excluded by another provision of this Agreement, shall not exceed (i) the Fees actually paid to BNYMTI by the Funds for services provided hereunder during the twenty-four (24) calendar months immediately preceding the last Loss Date (the “Damage Cap”); provided, however, that any financial penalties paid by BNYMTI for the failure to meet a Service Level and any corresponding payment made in respect of such Service Level shall not reduce the amount of the Damage Cap. (c) Notwithstanding any other provision, and for all purposes, of this Agreement: Neither party nor its Affiliates shall be liable for any Loss (including Loss caused by delays, failure, errors, interruption or loss of data) or breach hereunder occurring directly or indirectly by reason of any event or circumstance, whether foreseeable or unforeseeable, which despite the taking of commercially reasonable measures is beyond its reasonable control, including without limitation: natural disasters, such as floods, hurricanes, tornados, earthquakes and wildfires; epidemics; action or inaction of civil or military authority; war, terrorism, riots or insurrection; job action by organized labor; interruption, loss or malfunction of utilities, transportation, internet or communications capabilities; or non-performance by third parties (other than contractors or subcontractors of DTI BNYMTI for causes other than those described herein) (all and any of the foregoing being an "“Event Beyond Reasonable Control") ”). Upon the occurrence of an Event Beyond Reasonable Control, the affected party shall be excused from any non-performance caused by the Event Beyond Reasonable Control for so long as the Event Beyond Reasonable Control or damages caused by it prevail and such party continues to use commercially reasonable efforts to attempt to perform the obligation so impacted. (cd) BNYMTI shall not be liable for any Loss arising out of any action, omission or conduct of any prior service provider of a Fund or for any failure to discover any action, omission or conduct of any prior service provider of a Fund that caused or could cause Loss. (e) NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, BUT SUBJECT TO THE EXPRESS EXCLUSION OF TO THIS SECTION 11(c11(e) PROVIDED FOR IN THE LAST SENTENCE OF SECTION 5(d5(e), IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS, TRUSTEES, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS AGENTS OR SUBCONTRACTORS BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR LOST PROFITS, FOR EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER DAMAGES WHICH ARE NOT DIRECT DAMAGES REGARDLESS OF WHETHER SUCH DAMAGES WERE OR SHOULD HAVE BEEN FORESEEABLE AND REGARDLESS OF WHETHER ANY ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ALL AND EACH OF WHICH DAMAGES IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES. FOR PURPOSES OF CLARIFICATION: NO OTHER PROVISION OF THIS AGREEMENT SHALL BE INTERPRETED TO CONDITION, LIMIT, MODIFY, NULLIFY OR OTHERWISE PREVAIL IN WHOLE OR IN PART OVER THIS SECTION 11(c11(e). (df) Each party shall have a duty to mitigate damages for which the other party may become responsible, including giving notice of Loss or Breach Conduct which in timing and content is commercially reasonable under the circumstances when such notice would provide the other party with an opportunity to remediate the Loss or Breach Conduct. (eg) With respect to securities data, files, reports, information and research furnished to DTI BNYMTI by third parties (not delegated duties, subcontracted or otherwise engaged by BNYMTI to perform the services hereunder on its behalf) and included in the BNYM System ("“Securities Data"”), the Funds acknowledge that DTI and such third parties make BNYMTI makes no warranty concerning the Securities Data and DTI BNYMTI disclaims all responsibility for the Securities Data, including its content, accuracy, completeness, availability or timeliness of delivery, and DTI BNYMTI shall not in the absence of Breach Conduct be liable for Loss caused by Errant Securities Data (as defined below); provided, however, with respect to transaction activity communicated to BNYMTI by the DTCC or NSCC, BNYMTI will maintain commercially reasonable processes and procedures to detect and attempt to resolve rejected transactions. “Errant Securities Data” means Securities Data not being provided to it BNYMTI with the content and at the time which is standard for the industry or which is required for or used in the performance of any service provided for herein, including without limitation performance of in the Licensed ServicesAgreement.

Terms Relating to Liability. (a) DTI BNYM's sole and exclusive monetary liability to the Fund (and all persons claiming through or for the Fund) under this Agreement shall be liable for the money damages (i) resulting from BNYM's breaches of the Agreement that constitute the intentional misconduct, reckless disregard, fraud or negligence in the performance of an obligation under this Agreement ("Liable Conduct") and (ii) that are not excluded by another provision of this Agreement. (b) BNYM's maximum aggregate cumulative liability to each the Fund (and all persons or any person or entity entities claiming through the Fund, considered as a Fund) whole, for Loss all loss, cost, expense, damages and liabilities under this Agreement, the recovery of which is not otherwise excluded by another provision of this Agreement only to the extent the Loss is caused by, (i) with respect to DTI's performance of the Services, conduct constituting intentional misconduct, reckless disregard or negligence ("Breach Conduct"), and (ii) with respect to obligations under this Agreement other than those described in clause (i), for breaches of this Agreement. As used in this Agreement, negligence shall mean conduct not commercially reasonable under exceed the applicable circumstancesfees actually paid to BNYM by the Fund for services provided hereunder during the eighteen (18) full calendar months immediately preceding the last Loss Date. (bc) Notwithstanding any other provision, and for all purposes, of this Agreement: Neither party nor its Affiliates shall be liable for any Loss (including Loss caused by delays, failure, errors, interruption or loss of data) or breach hereunder occurring directly or indirectly by reason of any event or circumstance, whether foreseeable or unforeseeable, which despite the taking of commercially reasonable measures is beyond its reasonable control, including without limitation: extraordinary forces of nature and natural disasters, such as floods, hurricanes, severe storms (storms with one or more severely destructive forces comparable to hurricane but not meeting technical hurricane criteria), tornados, earthquakes and wildfires; national or local states of emergencies; epidemics; action or inaction of civil or military authority; war, terrorism, riots or insurrection; criminal acts; job action by organized labor; building or area evacuations ordered by lawful authority; interruption, loss or malfunction of utilities, transportation, internet computer or communications capabilities; or denial of service attacks; non-performance by third parties (other than contractors or subcontractors of DTI BNYM for causes other than those described herein) ); or functions or malfunctions of the internet, firewalls, encryption systems or security devices caused by any of the foregoing (all and any of the foregoing being an "Event Beyond Reasonable Control") ). Upon the occurrence of an Event Beyond Reasonable Control, the affected party Party shall be excused from any non-performance caused by the Event Beyond Reasonable Control for so long as the Event Beyond Reasonable Control or damages caused by it prevail and such party continues to use commercially reasonable efforts to attempt to perform the obligation so impacted. (c) NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, BUT SUBJECT TO THE EXPRESS EXCLUSION OF THIS SECTION 11(c) PROVIDED FOR IN THE LAST SENTENCE OF SECTION 5(d), IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS, TRUSTEES, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS OR SUBCONTRACTORS BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR LOST PROFITS, FOR EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER DAMAGES WHICH ARE NOT DIRECT DAMAGES REGARDLESS OF WHETHER SUCH DAMAGES WERE OR SHOULD HAVE BEEN FORESEEABLE AND REGARDLESS OF WHETHER ANY ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ALL AND EACH OF WHICH DAMAGES IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES. FOR PURPOSES OF CLARIFICATION: NO OTHER PROVISION OF THIS AGREEMENT SHALL BE INTERPRETED TO CONDITION, LIMIT, MODIFY, NULLIFY OR OTHERWISE PREVAIL IN WHOLE OR IN PART OVER THIS SECTION 11(c)including invoking disaster recovery or business continuity plans when applicable. (d) Each party BNYM shall have a duty not be liable for any Loss arising out of any action, omission or conduct of any prior service provider of the Fund or for any failure to mitigate damages for which discover any action, omission or conduct of any prior service provider of the other party may become responsible, including giving notice of Loss Fund that caused or Breach Conduct which in timing and content is commercially reasonable under the circumstances when such notice would provide the other party with an opportunity to remediate the Loss or Breach Conductcould cause Loss. (e1) With Notwithstanding any other provision of this Agreement, except for Section 11(e)(2) below and except to the extent a provision may expressly provide for indemnification of all Loss, in which case indemnification for all Loss shall be permitted, in no event shall BNYM, its Affiliates or any of its or their directors, officers, employees, agents or subcontractors be liable under the Agreement under any theory of tort, contract, strict liability or other legal or equitable theory for lost profits, for exemplary, punitive, special, incidental, indirect or consequential damages, or for any other losses which are not direct damages regardless of whether such losses or damages were or should have been foreseeable and regardless of whether any entity or person has been advised of the possibility of such losses or damages, all and each of which such loss is hereby excluded by agreement of the parties. (2) Notwithstanding Section 11(e)(1) above, in the event there occurs a Data Incident (as defined immediately below) that constitutes Liable Conduct of BNYM, in addition to any other damages that the Fund is entitled to recover under this Agreement, the Fund shall also be entitled to recover the reasonable attorneys' fees it incurs in consulting with and obtaining the advice and opinions of qualified independent counsel with respect to securities datathe Data Incident, including advice and opinions related to compliance with any applicable state law. "Data Incident" means any unauthorized access to or use, disclosure, loss or theft of unencrypted Nonpublic Personal Information of shareholders or former shareholders of the Fund from BNYM's computer systems, from persons or property under BNYM's control, or due to any act or failure to act of BNYM. "Nonpublic Personal Information" means nonpublic personal information and research furnished to DTI by third parties and included as that term is defined in the BNYM System ("Securities Data")Gxxxx-Xxxxx-Xxxxxx Act, the Funds acknowledge that DTI and such third parties make no warranty concerning the Securities Data and DTI disclaims all responsibility for the Securities Data113 STAT. 1338, including its contentPUBLIC LAW 106–102—NOV. 12, accuracy, completeness, availability or timeliness of delivery, and DTI shall not in the absence of Breach Conduct be liable for Loss caused by Securities Data not being provided to it with the content and at the time which is standard for the industry or which is required for performance of any service provided for herein, including without limitation performance of the Licensed Services1999.

Terms Relating to Liability. (a) DTI BNYM shall be liable to each Fund the Investment Company (or any person or entity claiming through a Fundthe Investment Company) for Loss the recovery of which is not otherwise excluded by another provision of this Agreement only to the extent the Loss is caused by, (i) with respect to DTI's BNYM’s performance of the Services, conduct constituting intentional misconduct, reckless disregard or gross negligence ("“Breach Conduct"”), and (ii) with respect to obligations under this Agreement other than those described in clause (i), for breaches of this Agreement. As used in this AgreementIn the absence of a finding to the contrary, negligence the acceptance, processing and/or negotiation of a fraudulent payment for the purchase of Shares shall mean conduct be presumed not commercially reasonable under the applicable circumstancesto have been Breach Conduct. (b) Notwithstanding any other provision, and for all purposes, of this Agreement: Neither party nor its Affiliates shall be liable for any Loss (including Loss caused by delays, failure, errors, interruption or loss of data) or breach hereunder occurring directly or indirectly by reason of any event or circumstance, whether foreseeable or unforeseeable, which despite the taking of commercially reasonable measures is beyond its reasonable control, including without limitation: natural disasters, such as floods, hurricanes, tornados, earthquakes and wildfires; epidemics; action or inaction of civil or military authority; war, terrorism, riots or insurrection; criminal acts; job action by organized labor; interruption, loss or malfunction of utilities, transportation, internet computer or communications capabilities; or non-performance by third parties (other than contractors or subcontractors of DTI BNYM for causes other than those described herein) ); or functions or malfunctions of the internet, firewalls, encryption systems or security devices caused by any of the foregoing (all and any of the foregoing being an "“Event Beyond Reasonable Control"”) . Upon the occurrence of an Event Beyond Reasonable Control, the affected party Party shall be excused from any non-performance caused by the Event Beyond Reasonable Control (i) for so long as the Event Beyond Reasonable Control or damages caused by it prevail and such party continues to use commercially reasonable efforts to attempt to perform the obligation so impacted. (c) BNYM shall not be liable for any Loss arising out of any action, omission or conduct of any prior service provider of the Fund or for any failure to discover any action, omission or conduct of any prior service provider of the Fund that caused or could cause Loss. (d) NOTWITHSTANDING ANY OTHER PROVISION OF THIS THE AGREEMENT, BUT SUBJECT TO THE EXPRESS EXCLUSION OF THIS SECTION 11(c) PROVIDED FOR IN THE LAST SENTENCE OF SECTION 5(d), IN NO EVENT SHALL EITHER PARTYBNYM, ITS THE FUND, THEIR RESPECTIVE AFFILIATES OR ANY OF ITS OR THEIR THE DIRECTORS, TRUSTEES, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS AGENTS OR SUBCONTRACTORS OF THE FOREGOING BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR LOST PROFITS, FOR EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER DAMAGES WHICH ARE NOT DIRECT DAMAGES REGARDLESS OF WHETHER SUCH DAMAGES WERE OR SHOULD HAVE BEEN FORESEEABLE AND REGARDLESS OF WHETHER ANY ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ALL AND EACH OF WHICH DAMAGES IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES. FOR PURPOSES OF CLARIFICATION: NO OTHER PROVISION OF THIS AGREEMENT SHALL BE INTERPRETED TO CONDITION, LIMIT, MODIFY, NULLIFY OR OTHERWISE PREVAIL IN WHOLE OR IN PART OVER THIS SECTION 11(c11(e). (de) No party may assert a claim or cause of action (or, if applicable, commence an arbitration or other alternate dispute resolution proceeding) against the other party or any of its affiliates more than 15 months after the first event or occurrence comprising the conduct or alleged conduct upon which the cause of action is based. (f) Each party shall have a duty to mitigate damages for which the other party may become responsible, including giving notice of Loss or Breach Conduct which in timing and content is commercially reasonable under the circumstances when such notice would provide the other party with an opportunity to remediate the Loss or Breach Conduct. (eg) With respect to securities data, information and research furnished to DTI BNYM by third parties and included in the BNYM System ("“Securities Data"”), the Funds acknowledge Company acknowledges that DTI BNYM and such third parties make no warranty concerning the Securities Data and DTI BNYM disclaims all responsibility for the Securities Data, including its content, accuracy, completeness, availability or timeliness of delivery, and DTI BNYM shall not in the absence of Breach Conduct be liable for Loss caused by Securities Data not being provided to it with the content and at the time which is standard for the industry or which is required for performance of any service provided for herein, including without limitation performance of the Licensed ServicesServices (as defined in Schedule D) and other BNYM services provided for in Schedule D. (h) This Section 11 shall survive termination of this Agreement.

Terms Relating to Liability. (a) DTI BNYM shall be liable to each the Fund (or any person or entity claiming through a the Fund) for Loss the recovery of which is not otherwise excluded by another provision of this Agreement only to the extent the Loss is caused byby BNYM’s negligence, (i) with respect to DTI's willful misconduct or bad faith in the performance of the Services, conduct constituting intentional misconduct, reckless disregard or negligence ("Breach Conduct"), and (ii) with respect to obligations its duties under this Agreement other than those described in clause (i"Standard of Care"). In the absence of a finding by a court of competent jurisdiction to the contrary, the acceptance, processing and/or negotiation of a fraudulent payment for breaches the purchase of this Agreement. As used in this Agreement, negligence Shares shall mean conduct be presumed not commercially reasonable under the applicable circumstancesto have been a failure of BNYM to meet its Standard of Care. (b) Notwithstanding any other provision, and for all purposes, of this Agreement: Neither party nor its Affiliates shall be liable for any Loss (including Loss caused by delays, failure, errors, interruption or loss of data) or breach hereunder occurring directly or indirectly by reason of any event or circumstance, whether foreseeable or unforeseeable, which despite the taking of commercially reasonable measures (including in the case of BNYM compliance with its business continuity plan) is beyond its reasonable control, including without limitation: natural disasters, such as floods, hurricanes, tornados, earthquakes and wildfires; epidemics; action or inaction of civil or military authority; war, terrorism, riots or insurrection; criminal acts; job action by organized labor; interruption, loss or malfunction of utilities, transportation, internet computer or communications capabilities; or non-performance by third parties (other than contractors or subcontractors of DTI BNYM for causes other than those described herein) ); or functions or malfunctions of the internet, firewalls, encryption systems or security devices caused by any of the foregoing (all and any of the foregoing being an "Event Beyond Reasonable Control") . Upon the occurrence of an Event Beyond Reasonable Control, the affected party Party shall be excused from any non-performance caused by the Event Beyond Reasonable Control (i) for so long as the Event Beyond Reasonable Control or damages caused by it prevail and (ii) such party continues to use commercially reasonable efforts to attempt to perform the obligation so impacted. (c) NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENTIn no event shall BNYM or its affiliates, BUT SUBJECT TO THE EXPRESS EXCLUSION OF THIS SECTION 11(cor any of its or their directors, officers, employees, agents or subcontractors, be liable for any consequential, incidental, exemplary, punitive, special or indirect damages, whether or not the likelihood of such damages was or should have been known or foreseeable by BNYM or its affiliates, and regardless of whether any entity has been advised of the possibility of such damages; except that in the event of any conflict between this Section 11(d) PROVIDED FOR IN THE LAST SENTENCE OF SECTION 5(dand the terms of Schedule H ("As Of" Procedures), IN NO EVENT SHALL EITHER PARTYthe terms of Schedule H shall prevail. The foregoing limitation on liability shall not apply to damages to the extent arising from the bad faith, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORSintentional misconduct or gross negligence of BNYM. For purposes of clarification: no other provision of this agreement shall be interpreted to condition, TRUSTEESlimit, OFFICERSmodify, EMPLOYEES, AGENTS, CONTRACTORS OR SUBCONTRACTORS BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR LOST PROFITS, FOR EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER DAMAGES WHICH ARE NOT DIRECT DAMAGES REGARDLESS OF WHETHER SUCH DAMAGES WERE OR SHOULD HAVE BEEN FORESEEABLE AND REGARDLESS OF WHETHER ANY ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ALL AND EACH OF WHICH DAMAGES IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES. FOR PURPOSES OF CLARIFICATION: NO OTHER PROVISION OF THIS AGREEMENT SHALL BE INTERPRETED TO CONDITION, LIMIT, MODIFY, NULLIFY OR OTHERWISE PREVAIL IN WHOLE OR IN PART OVER THIS SECTION 11(cnullify or otherwise prevail in whole or in part over this Section 11(d). (d) Each party shall have a duty to mitigate damages for which the other party may become responsible, including giving notice of Loss or Breach Conduct which in timing and content is commercially reasonable under the circumstances when such notice would provide the other party with an opportunity to remediate the Loss or Breach Conduct. (e) With respect to securities data, information and research furnished to DTI BNYM by third parties and included in the BNYM System ("Securities Data"), the Funds acknowledge Company acknowledges that DTI BNYM and such third parties make no warranty concerning the Securities Data and DTI BNYM disclaims all responsibility for the Securities Data, including its content, accuracy, completeness, availability or timeliness of delivery, and DTI BNYM shall not in the absence of Breach Conduct be liable for Loss caused by Securities Data not being provided to it with the content and at the time which is standard for the industry or which is required for performance of any service provided for herein, including without limitation performance of the Licensed ServicesServices (as defined in Schedule D) and other BNYM services provided for in Schedule D. For clarification, this Section 11(e) is not intended, and shall not be interpreted, to restrict or abrogate in any manner rights that Company may have against such third parties under agreements or otherwise, and such third parties shall not be third party beneficiaries of this Section 11(e). (f) This Section 11 shall survive termination of this Agreement.

Terms Relating to Liability. (a) DTI BNYM shall be obligated to exercise case and diligence in the performance of its duties hereunder and to act in good faith in performing services provided for under this Agreement. BNYM shall be liable to each Fund the Investment Company (or any person or entity claiming through a Fundthe Investment Company) for Loss the recovery of which is not otherwise excluded by another provision of this Agreement only to the extent the Loss is caused byby the bad faith, (i) with respect to DTI's performance of the Services, conduct constituting intentional misconduct, reckless disregard or negligence of BNYM ("“Breach Conduct"”). In the absence of a finding to the contrary, and (ii) with respect the acceptance, processing and/or negotiation of a fraudulent payment for the purchase of Shares so long as such acceptance, processing and/or negotiation was not caused by BNYM’s Breach Conduct shall be presumed not to obligations under this Agreement other than those described in clause (i), for breaches of this Agreement. As used in this Agreement, negligence shall mean conduct not commercially reasonable under the applicable circumstanceshave been Breach Conduct. (b) Notwithstanding any other provision, and for all purposes, of this Agreement: Neither party nor its Affiliates shall be liable for any Loss (including Loss caused by delays, failure, errors, interruption or loss of data) or breach hereunder occurring directly or indirectly by reason of any event or circumstance, whether foreseeable or unforeseeable, which despite the taking of commercially reasonable measures is beyond its reasonable control, including without limitation: natural disasters, such as floods, hurricanes, tornados, earthquakes and wildfires; epidemics; action or inaction of civil or military authority; war, terrorism, riots or insurrection; criminal acts; job action by organized labor; interruption, loss or malfunction of utilities, transportation, internet computer or communications capabilities; or non-performance by third parties (other than contractors or subcontractors of DTI BNYM for causes other than those described herein) ); or functions or malfunctions of the internet, firewalls, encryption systems or security devices caused by any of the foregoing (all and any of the foregoing being an "“Event Beyond Reasonable Control") ”). Upon the occurrence of an Event Beyond Reasonable Control, the affected party Party shall be excused from any non-performance caused by the Event Beyond Reasonable Control (i) for so long as the Event Beyond Reasonable Control or damages caused by it prevail and such party continues to use commercially reasonable efforts to attempt to perform the obligation so impacted. (c) BNYM shall not be liable for any Loss arising out of any action, omission or conduct of any prior service provider of the Fund or for any failure to discover any action, omission or conduct of any prior service provider of the Fund that caused or could cause Loss. (d) NOTWITHSTANDING ANY OTHER PROVISION OF THIS THE AGREEMENT, BUT SUBJECT TO THE EXPRESS EXCLUSION OF THIS SECTION 11(c) PROVIDED FOR IN THE LAST SENTENCE OF SECTION 5(d), IN NO EVENT SHALL EITHER PARTY, ANY PARTY OR ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS, TRUSTEES, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS OR SUBCONTRACTORS BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR LOST PROFITS, FOR EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER DAMAGES WHICH ARE NOT DIRECT DAMAGES REGARDLESS OF WHETHER SUCH DAMAGES WERE OR SHOULD HAVE BEEN FORESEEABLE AND REGARDLESS OF WHETHER ANY ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ALL AND EACH OF WHICH DAMAGES IS HEREBY Confidential And Proprietary BNYM Draft 2012-XX-XX EXCLUDED BY AGREEMENT OF THE PARTIES. FOR PURPOSES OF CLARIFICATION: NO OTHER PROVISION OF THIS AGREEMENT SHALL BE INTERPRETED TO CONDITION, LIMIT, MODIFY, NULLIFY OR OTHERWISE PREVAIL IN WHOLE OR IN PART OVER THIS SECTION 11(c11(d). (de) Each party shall have a duty to mitigate damages for which the other party may become responsible, including giving notice of Loss or Breach Conduct which in timing and content is commercially reasonable under the circumstances when such notice would provide the other party with an opportunity to remediate the Loss or Breach Conduct. (ef) With respect to securities data, information and research furnished to DTI BNYM by third parties and included in the BNYM System ("“Securities Data"”), the Funds acknowledge Company acknowledges that DTI BNYM and such third parties make no warranty concerning the Securities Data and DTI BNYM disclaims all responsibility for the Securities Data, including its content, accuracy, completeness, availability or timeliness of delivery, and DTI BNYM shall not in the absence of Breach Conduct be liable for Loss caused by Securities Data not being provided to it with the content and at the time which is standard for the industry or which is required for performance of any service provided for hereinindustry, including without limitation performance of the Licensed ServicesServices (as defined in Schedule C) and other BNYM services provided for in Schedule C. (g) This Section 11 shall survive termination of this Agreement.

Terms Relating to Liability. (a) DTI With respect to any breach by BNYM of an obligation under this Agreement, BNYM shall be liable to each the Fund (or any person or entity claiming through a or for the Fund) for Loss Loss, the recovery of which is not otherwise excluded by another provision of this Agreement Agreement, only to the extent the Loss arises out of or is caused by, (i) with respect to DTI's performance of the Services, conduct constituting by intentional misconduct, reckless disregard or gross negligence of BNYM ("Breach “Liable Conduct"”). In the absence of a finding to the contrary, and (ii) with respect the acceptance, processing and/or negotiation of a fraudulent payment for the purchase of Shares shall be presumed not to obligations under this Agreement other than those described in clause (i), for breaches of this Agreementhave been Liable Conduct. As used in this Agreement, negligence shall mean conduct not commercially reasonable under the applicable circumstances.Confidential And Proprietary Execution Version (b) [intentionally omitted] (c) Notwithstanding any other provision, and for all purposes, of this Agreement: Neither party nor its Affiliates shall be liable for any Loss (including Loss caused by delays, failure, errors, interruption or loss of data) or breach hereunder occurring directly or indirectly by reason of any event or circumstance, whether foreseeable or unforeseeable, which despite the taking of commercially reasonable measures is beyond its reasonable control, including without limitation: extraordinary forces of nature and natural disasters, such as floods, hurricanes, severe storms (storms with a destructive force substantially equivalent to hurricanes but not meeting technical criteria necessary for hurricane designation), tornados, earthquakes and wildfires; national or local states of emergencies; epidemics; action or inaction of civil or military authority; war, terrorism, riots or insurrection; criminal acts; job action by organized labor; building or area evacuations ordered by lawful authority; interruption, loss or malfunction of utilities, transportation, internet computer or communications capabilities; or denial of service attacks; non-performance by third parties (other than contractors or subcontractors of DTI BNYM for causes other than those described herein) ); or functions or malfunctions of the internet, firewalls, encryption systems or security devices caused by any of the foregoing (all and any of the foregoing being an "“Event Beyond Reasonable Control") ”). Upon the occurrence of an Event Beyond Reasonable Control, the affected party Party shall be excused from any non-performance caused by the Event Beyond Reasonable Control for so long as the Event Beyond Reasonable Control or damages caused by it prevail and such party continues to use commercially reasonable efforts to attempt to perform the obligation so impacted, including invoking disaster recovery or business continuity plans when applicable. (cd) NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENTBNYM shall not be liable for any Loss arising out of any action, BUT SUBJECT TO THE EXPRESS EXCLUSION OF THIS SECTION 11(comission or conduct of any prior service provider of the Fund or for any failure to discover any action, omission or conduct of any prior service provider of the Fund that caused or could cause Loss. (e) PROVIDED FOR IN THE LAST SENTENCE OF SECTION 5(d)Notwithstanding any other provision of the Agreement, IN NO EVENT SHALL EITHER PARTYin no event shall BNYM, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORSits Affiliates or any of its or their directors, TRUSTEESofficers, OFFICERSemployees, EMPLOYEESagents or subcontractors be liable under any theory of tort, AGENTScontract, CONTRACTORS OR SUBCONTRACTORS BE LIABLE UNDER ANY THEORY OF TORTstrict liability or other legal or equitable theory for lost profits, CONTRACTfor exemplary, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR LOST PROFITSpunitive, FOR EXEMPLARYspecial, PUNITIVEincidental, SPECIALindirect or consequential damages, INCIDENTALor for any other losses which are not direct damages regardless of whether such losses or damages were or should have been foreseeable and regardless of whether any entity or person has been advised of the possibility of such losses or damages, INDIRECT OR CONSEQUENTIAL DAMAGESall and each of which such loss is hereby excluded by agreement of the parties. For purposes of clarification: no other provision of this Agreement shall be interpreted to condition, OR FOR ANY OTHER DAMAGES WHICH ARE NOT DIRECT DAMAGES REGARDLESS OF WHETHER SUCH DAMAGES WERE OR SHOULD HAVE BEEN FORESEEABLE AND REGARDLESS OF WHETHER ANY ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGESlimit, ALL AND EACH OF WHICH DAMAGES IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES. FOR PURPOSES OF CLARIFICATION: NO OTHER PROVISION OF THIS AGREEMENT SHALL BE INTERPRETED TO CONDITIONmodify, LIMIT, MODIFY, NULLIFY OR OTHERWISE PREVAIL IN WHOLE OR IN PART OVER THIS SECTION 11(cnullify or otherwise prevail in whole or in part over this Section 11(e). (df) No party may assert a claim or cause of action (or, if applicable, commence an arbitration or other alternate dispute resolution proceeding) against BNYM or any of its affiliates more than 18 months after the first event or occurrence comprising the conduct or alleged conduct upon which the cause of action is based. (g) Each party shall have a duty to mitigate damages for which the other party may become responsible, including giving notice of Loss or Breach Conduct which in timing and content is commercially reasonable under the circumstances when such notice would provide the other party with an opportunity to remediate the Loss or Breach Conduct. (eh) With respect to securities data, files, reports, information and research furnished to DTI BNYM by third parties (not delegated duties, subcontracted or otherwise engaged by BNYM to perform the services hereunder on its behalf) and included in the BNYM System ("“Securities Data"”), the Funds acknowledge Fund acknowledges that DTI and such third parties make BNYM makes no warranty concerning the Securities Data and DTI BNYM disclaims all responsibility for the Securities Data, including its content, accuracy, completeness, availability or timeliness of delivery, and DTI BNYM shall not in the absence of Breach Conduct be liable for Loss caused by Errant Securities Data not being provided (as defined below); provided, however, with respect to it with transaction activity communicated to BNYM by the content and at the time which is standard for the industry DTCC or which is required for performance of any service provided for hereinNSCC, including without limitation performance of the Licensed Services.BNYM will maintain Confidential And Proprietary Execution Version

Terms Relating to Liability. (a) DTI shall be liable to each Fund (or any person or entity claiming through a Fund) for Loss the recovery of which is not otherwise excluded by another provision of this Agreement only to the extent the Loss is caused by, (i) with respect to DTI's performance of the Services, conduct constituting intentional misconduct, reckless disregard or negligence ("Breach Conduct"), and (ii) with respect to obligations under this Agreement other than those described in clause (i), for breaches of this Agreement. As used in this Agreement, negligence shall mean conduct not commercially reasonable under the applicable circumstances. (b) Notwithstanding any other provision, and for all purposes, of this Agreement: Neither party nor its Affiliates shall be liable for any Loss (including Loss caused by delays, failure, errors, interruption or loss of data) or breach hereunder occurring directly or indirectly by reason of any event or circumstance, whether foreseeable or unforeseeable, which despite the taking of commercially reasonable measures is beyond its reasonable control, including without limitation: natural disasters, such as floods, hurricanes, tornados, earthquakes and wildfires; epidemics; action or inaction of civil or military authority; war, terrorism, riots or insurrection; job action by organized labor; interruption, loss or malfunction of utilities, transportation, internet or communications capabilities; or non-performance by third parties (other than contractors or subcontractors of DTI for causes other than those described herein) (all and any of the foregoing being an "Event Beyond Reasonable Control") . Upon the occurrence of an Event Beyond Reasonable Control, the affected party shall be excused from any non-performance caused by the Event Beyond Reasonable Control for so long as the Event Beyond Reasonable Control or damages caused by it prevail and such party continues to use commercially reasonable efforts to attempt to perform the obligation so impacted.. NY 73868230v19 (c) NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, BUT SUBJECT TO THE EXPRESS EXCLUSION OF THIS SECTION 11(c) PROVIDED FOR IN THE LAST SENTENCE OF SECTION 5(d), IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS, TRUSTEES, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS OR SUBCONTRACTORS BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR LOST PROFITS, FOR EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER DAMAGES WHICH ARE NOT DIRECT DAMAGES REGARDLESS OF WHETHER SUCH DAMAGES WERE OR SHOULD HAVE BEEN FORESEEABLE AND REGARDLESS OF WHETHER ANY ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ALL AND EACH OF WHICH DAMAGES IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES. FOR PURPOSES OF CLARIFICATION: NO OTHER PROVISION OF THIS AGREEMENT SHALL BE INTERPRETED TO CONDITION, LIMIT, MODIFY, NULLIFY OR OTHERWISE PREVAIL IN WHOLE OR IN PART OVER THIS SECTION 11(c). (d) Each party shall have a duty to mitigate damages for which the other party may become responsible, including giving notice of Loss or Breach Conduct which in timing and content is commercially reasonable under the circumstances when such notice would provide the other party with an opportunity to remediate the Loss or Breach Conduct. (e) With respect to securities data, information and research furnished to DTI by third parties and included in the BNYM System ("Securities Data"), the Funds acknowledge that DTI and such third parties make no warranty concerning the Securities Data and DTI disclaims all responsibility for the Securities Data, including its content, accuracy, completeness, availability or timeliness of delivery, and DTI shall not in the absence of Breach Conduct be liable for Loss caused by Securities Data not being provided to it with the content and at the time which is standard for the industry or which is required for performance of any service provided for herein, including without limitation performance of the Licensed Services.

Terms Relating to Liability. (a) DTI BNYM shall be liable to each the Fund (or any person or entity claiming through a or for the Fund) for Loss the recovery of which is not otherwise excluded by another provision of this Agreement only to the extent the Loss is caused by, (i) with respect to DTI's performance of by the Services, conduct constituting intentional misconduct, reckless disregard or gross negligence of BNYM ("Breach “Liable Conduct"”). In the absence of a finding to the contrary, and (ii) with respect the acceptance, processing and/or negotiation of a fraudulent payment for the purchase of Shares shall be presumed not to obligations under this Agreement other than those described in clause (i), for breaches of this Agreement. As used in this Agreement, negligence shall mean conduct not commercially reasonable under the applicable circumstanceshave been Liable Conduct. (b) [intentionally omitted] (c) Notwithstanding any other provision, and for all purposes, of this Agreement: Neither party nor its Affiliates shall be liable for any Loss (including Loss caused by delays, failure, errors, interruption or loss of data) or breach hereunder occurring directly or indirectly by reason of any event or circumstance, whether foreseeable or unforeseeable, which despite the taking of commercially reasonable measures is beyond its reasonable control, including without limitation: natural disasters, such as floods, hurricanes, severe storms, tornados, earthquakes and wildfires; epidemics; action or inaction of civil or military authority; war, terrorism, riots or insurrection; criminal acts; job action by organized labor; interruption, loss or malfunction of utilities, transportation, internet computer or communications capabilities; or non-performance by third parties (other than contractors or subcontractors of DTI BNYM for causes other than those described herein) ); or functions or malfunctions of the internet, firewalls, encryption systems or security devices caused by any of the foregoing (all and any of the foregoing being an "“Event Beyond Reasonable Control"”) . Upon the occurrence of an Event Beyond Reasonable Control, the affected party Party shall be excused from any non-performance caused by the Event Beyond Reasonable Control (i) for so long as the Event Beyond Reasonable Control or damages caused by it prevail and such party continues to use commercially reasonable efforts to attempt to perform the obligation so impacted, including invoking disaster recovery or business continuity plans when applicable. (cd) [intentionally omitted] (e) NOTWITHSTANDING ANY OTHER PROVISION OF THIS THE AGREEMENT, BUT SUBJECT TO THE EXPRESS EXCLUSION OF THIS SECTION 11(c) PROVIDED FOR IN THE LAST SENTENCE OF SECTION 5(d), IN NO EVENT SHALL EITHER PARTYBNYM, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS, TRUSTEES, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS AGENTS OR SUBCONTRACTORS BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR LOST PROFITS, FOR EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER DAMAGES WHICH ARE NOT DIRECT DAMAGES REGARDLESS OF WHETHER SUCH DAMAGES WERE OR SHOULD HAVE BEEN FORESEEABLE AND REGARDLESS OF WHETHER ANY ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ALL AND EACH OF WHICH DAMAGES IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES. FOR PURPOSES OF CLARIFICATION: NO OTHER PROVISION OF THIS AGREEMENT SHALL BE INTERPRETED TO CONDITION, LIMIT, MODIFY, NULLIFY OR OTHERWISE PREVAIL IN WHOLE OR IN PART OVER THIS SECTION 11(c11(e). (df) No party may assert a claim or cause of action (or, if applicable, commence an arbitration or other alternate dispute resolution proceeding) against BNYM or any of its affiliates more than 15 months after the first event or occurrence comprising the conduct or alleged conduct upon which the cause of action is based. (g) Each party shall have a duty to mitigate damages for which the other party may become responsible, including giving notice of Loss or Breach Conduct which in timing and content is commercially reasonable under the circumstances when such notice would provide the other party with an opportunity to remediate the Loss or Breach Conduct. (eh) With respect to securities data, files, reports, information and research furnished to DTI BNYM by third parties and included in the BNYM System ("“Securities Data"”), the Funds acknowledge Company acknowledges that DTI BNYM and such third parties make no warranty concerning the Securities Data and DTI BNYM disclaims all responsibility for the Securities Data, including its content, accuracy, completeness, availability or timeliness of delivery, and DTI BNYM shall not in the absence of Breach Conduct be liable for Loss caused by Securities Data not being provided to it with the content and at the time which is standard for the industry or which is required for performance of any service provided for herein, including without limitation performance of the Licensed ServicesServices (as defined in Schedule C) and other BNYM services provided for in Schedule C; provided, however, with respect to transaction activity communicated to BNYM by the DTCC or NSCC, BNYM will maintain commercially reasonable processes and procedures to detect and attempt to resolve rejected transactions. (i) On matters reported to BNYM that may involve check fraud, fraudulently procured or tendered signature guarantees, signature validations or other guarantees or certifications, or any other matter that may give rise to a claim under the Uniform Commercial Code as adopted by a particular State or Territory of the United States (“UCC”) or under a signature guarantee or other program, such as the Securities Transfer Agents Medallion Program, based on whole or in part on the UCC (“UCC Program”), BNYM will take commercially reasonable measures to investigate the matter (“UCC Matter”) and if it reasonably determines at any time due to the investigation that under principles of commercial reasonableness a number of Shares or Shares having a particular value should be credited to a shareholder’s account (“Restored Shares”), BNYM will take commercially reasonable measures to file a claim on behalf of the Fund for recovery of the relevant amount with the appropriate party under the UCC or the UCC Program. BNYM will deposit any recovery in the appropriate Service Account, will inform the Fund if the claim is denied in whole or in part and will cooperate at the Fund’s cost and expense with any actions taken by the Fund to seek recovery. Absent Liable Conduct in processing the underlying transaction, the Fund shall be solely responsible for the purchase price of the Restored Shares, any market exposure (gain or loss) experienced by the affected shareholder between the occurrence of the UCC Matter and the date of crediting of the Restored Shares, and all costs and expenses of seeking any recovery beyond the initial claim. This Section 11(i) sets forth the sole responsibility of BNYM with respect to UCC Matters. (j) On all matters of any nature arising under or in connection with this Agreement BNYM shall be entitled to rely on, and engage in conduct based upon, its good faith interpretation of writings in whatsoever form, format or media they may appear (“Writings”) and upon its reasonable interpretation of “Legal Authority” (which is hereby defined to mean all laws and all regulations, rules, legal process and other acts and communications of governmental and quasi-governmental bodies affecting legal rights or liabilities), including without limitation such reliance and conduct in circumstances when available Legal Authority is in conflict or does not provide unambiguous precedent or guidance. BNYM shall not be liable for any Loss directly or indirectly arising from or in connection with such reliance or conduct described in the foregoing sentence, except where such Loss arises out of or is related to the gross negligence, willful misconduct, or reckless disregard of BNYM, and, for the avoidance of doubt, such conduct is included within the conduct described in clause (b) of Section 12. In the event the Fund instructs or requests that BNYM engage in conduct on any matter in a manner other than in accordance with BNYM’s good faith interpretation of a Writing or reasonable interpretation of Legal Authority, and BNYM engages in such conduct, BNYM shall not be liable for any Loss directly or indirectly arising from or in connection with such conduct (regardless of whether BNYM has the right under Section 10 to decline to engage in the conduct) and, for the avoidance of doubt, such conduct is included within the conduct described in clause (b) of Section 12. (k) This Section 11 shall survive termination of this Agreement.